What is Child Custody?
“Child custody” is a term often used to describe living arrangements for children.
How does Child Custody Arise?
When many people think of “child custody”, they think of getting a Court Order for child custody. The reality is however, that child custody takes many forms and can arise in a number of ways. It may occur:
- naturally (that is, in the course of normal parenting – for instance where two parents are still in a relationship and raise a child together);
- by oral agreement (e.g. between two separated parents);
- by informal written agreement (e.g. via text message, or e-mail);
- via a “Parenting Plan”;
- via a “Court Order” (being either a “Consent Order” or a “Parenting Order”) (this is sometimes called a Child Custody Order).
What Is a Parenting Plan?
A Parenting Plan is defined under the law as a written, dated agreement between two persons which contains parenting arrangements in respect of a child.
So long as it is written, signed and dated, a Parenting Plan can be as simple as a hand-written document providing for some form of parenting arrangement. It could, for instance just say “Our son, Tim, will live with his mother”. It could, of course, also be far more detailed and include provisions like how much time Tim is to spend with his father, how Tim’s parents are to make decisions about him, how Tim is to spend school holidays and special days with his parents, phone/video contact, discipline, overseas travel etc.
Although Parenting Plans are useful in the sense that they can clearly map out what parenting arrangements are to be in place, Courts will not enforce their terms. In fact, Courts can only enforce the terms of a Court Order (Parenting Order or a Consent Order).
What is a Court Order / Child Custody Order?
A Court Order / Child Custody Order is an Order of the Family Court of Australia, Federal Circuit Court of Australia or Magistrates Court of Queensland which contains parenting arrangements for a child which have been approved by the Court.
Like a Parenting Plan, a Court Order can contain provisions about how decisions in respect of a child are to be made, who the child lives with/spends time with, school holidays, special days, travel, phone contact/video etc.
Unlike a Parenting Plan however, a Court Order can be enforced by a Court, and penalties, including fines and imprisonment, can be imposed upon parents who breach a Court Order.
There are two ways a Court Order can be made. The first is where the parents agree on the terms of the Court Order. This is called a “Consent Order”. The second is where the parents do not agree on the terms of the Court Order, and a Judge or other Court official, like a Registrar, decides on the terms of the Court Order.
Who can get a Child Custody Order?
A child’s parents or significant persons in a child’s life may obtain a Child Custody Order.
This article was published by Kyle Barram, solicitor on 18 February 2016. Kyle is a Family Lawyer practising out of our Townsville office.